Criminal Appeal No. 18/8 of 2009 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.392 of 2013 (In the matter of an application under Sections 401 of the Criminal Procedure Code, 1973) Harishankar Sagar ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner: Mr. Mahendra Kumar Mohapatra, Advocate For the Opp. Party: Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 20.06.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 25.11.2009 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balangir in Criminal Appeal No.18/8 of 2009, whereby the judgment of conviction and order of sentence dated 08.05.2009 passed by the learned S.D.J.M., Bolangir in G.R. Case No.709(A) of 2005/T.R. No.994 of
Legal Reasoning
2006 has been confirmed. 2. According to the F.I.R. the prosecution story is that the informant in this case is a resident of village of Madhiapali. He bought two quintals' worth of 10 mm iron rods and one half quintal of 2 mm iron rods for the construction of his house, and he stored the articles in the premises of his house. Someone stole the aforementioned iron rods and wooden Balis that were stored on the informant's premises on December 23/24.12.2005, during the night. The pilfered items were worth INR 6,000. 3. The informant reported the incident to the Sadar Police Station's O.I.C. on December 24, 2005, after learning about it the O.I.C. filed P.S. Case No. 260 of 2005 for the offence under Section 379 IPC and began the investigation into the matter. After the investigation was over, the I.O. filed the charge sheet after determining that there was prima facie evidence against the three accused—Harishankar Sagar, Mukesh Barik, and Mukandar Barik under Sections 379 and 34 of the IPC. As a result, Page 2 of 10 the learned Trial Court had charged them in accordance with the aforementioned Sections and put them to trial. 4. To bring home the charges, the prosecution had examined as many as 2 witnesses and 8 documents were exhibited. The plea of defence was that of complete denial. 5. The learned trial Court analyzed the entire evidence on record and found him guilty for the offence under Section 411 of I.P.C. and sentenced him to undergo R.I. for one year. 6. The judgment of conviction and sentence dated 08.05.2009 passed by the learned S.D.J.M., Balangir in G.R. Case No.709(A) of 2005/T.R. Case No.994 of 2006 was called in question by filing Criminal Appeal No.18/8 of 2009 in the Court of the learned Addl. Sessions Judge-cum- Special Judge (Vigilance), Balangir, by the petitioner. 7. Having failed in the appeal the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. Page 3 of 10 8.
Legal Reasoning
Heard Mr. Mahendra Kumar Mohapatra, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. The petitioner along with Mukesh Barik and Harishankar Sagar were charged for the offences punishable under Sections-379/34 IPC. They were subjected to trial for the said charges. 11. The prosecution out of 14 charge-sheeted witnesses chose to examine only two witnesses namely P.W.1, the informant of the case and P.W.2, the I.O. of the case. On the strength of the evidence of these two witnesses, the prosecution attempted to prove its case. 12. The Trial Court disbelieved the ocular testimony of P.W.1, the informant and recorded acquittal in favour of all the accused persons for the offence punishable under Sections-379/34 IPC. However, the Trial Court found the petitioner guilty for the offence under Section 411 IPC, Page 4 of 10 because it was found that the stolen properties were seized from the petitioner, who could not explain its source. 13. The petitioner was sentenced to undergo R.I. for one year for the said offence. The petitioner’s appeal to the Sessions Court also failed. Therefore, the petitioner by way of the present revision petition is challenging the judgment of conviction and order of sentence dated 25.11.2009 passed by the learned Addl. Sessions Judge, Balangir in Criminal Appeal No.18/8 of 2009. 14. I have carefully perused the evidence of both the witnesses and evaluated the judgments of both the Courts below. 15. In the instant case, only two witnesses were examined out of whom P.W.2 was the I.O. of the case. Therefore, in true sense, the prosecution is relying upon the testimony of a single witness namely P.W.1. The testimony of P.W.1 was not found reliable by the Trial Court so far as establishing the charge under section 379/34 IPC is concern. Therefore, to that extent, the Trial Court disbelieved P.W.1’s version. However, relying upon his testimony, the Trial Court recorded a finding that the seized articles were recovered from the possession of the present Page 5 of 10 petitioner, which was identified by the informant, P.W.1. If the part of prosecution story regarding the involvement of accused persons in the stolen of article was not believed, reliance on the rest part of the version of P.W.1 needs to be looked into carefully to sustain the conviction. 16. In the present case, although the seizure list was prepared, but the same was not proved on record either by examining the independent witness or by producing the stolen articles before the Court. Admittedly, no seizure witnesses were examined. 17. The I.O. of the case could not even explain in his cross- examination as to from whom he had seized the stolen articles of the informant, from which place the stolen articles were exactly seized. There was no description of the area, place of occurrence etc. Therefore, the version of P.W.2 appears to be tainted with doubts. 18. It is apparent from the record that the charges against the petitioner and other accused persons were framed for the alleged offence under Section 379/34 IPC and there was no specific charge framed against the petitioner for the alleged offence under Section 411 IPC. Page 6 of 10 19. The Appellate Court has presumed under the grounds of Section 114 (a) of the Evidence Act that the alleged stolen articles were recovered at the instance of the petitioner, who disclosed the same when he was arrested in some other case. 20. Therefore, the Appellate Court recorded that “It is manifestly obvious that the learned Court below has based the conviction on the evidence leading to discovery under section 27 of the Evidence Act and on the presumption under section 114(a) of Evidence Act. It is pertinent to note that presumption under section 114(a) of Evidence Act arose for possession of stolen property. The appellant has not rebutted this presumption. The learned trial Court has discussed at length the evidence of P.W.1 and P.W.2. The learned counsel for the accused- appellant in support of his contention has relied on a decision reported in A.I.R. 1976 SC 961 (Nachhttir Singh vs. State of Punjab) where it has been held “The recovery in the circumstances of the case ought to have been proved by examining the witness who had witnessed the recovery.” But in the cited case there were serious infirmities in the main version of the occurrence that the story of arrest, recovery of fire arms and Page 7 of 10 cartridges from the person of the appellant and the finding of the empties at the place of occurrence assumes importance. But in the present case no infirmity is found. Therefore, the facts of the cited decisions are squarely distinguishable from the facts of the present case. However reliance can be placed on the decision reported in (2006) 34 O.C.R. 579 (State of Orissa vs. Sukuram Munda) where it has been held “Accused gave information about the place of concealment and basing on his information weapons were recovered from the bush. No evidence that someone else had concealed the weapons or the concealment was visible to others or that the accused had some other way of knowing that the weapons were there. Held, fact of recovery believable. No requirement in law to obtain signature of independent witnesses either on the statement of accused or in the recovery memo. Held, non-examination of local seizure witness will not make factum of recovery unbelievable if the evidence is otherwise reliable.” It is abundantly clear that the seized articles were recovered u/s. 27 of Evidence Act. Besides, the informant has identified the seized articles. It is the specific evidence of the I.O. that the stolen articles were recovered u/s. 27 of Evidence Act. It is Page 8 of 10 significant to note that though presumption u/s. 114(a) of Evidence Act arose for possession of stolen property, the appellant has signally failed to rebut the presumption. The decision relied on by the learned counsel for the accused-appellant has no application to the present case. In fact the impugned judgment suffers from no illegality or infirmity. The contentions of the learned counsel for the accused-appellant hardly carry any legal conviction. I am, therefore, in agreement with the impugned judgment.” 21. I am not in complete agreement with the findings recorded by the Courts below because in absence of any specific charge being framed against the petitioner and in absence of the seizure of the stolen articles being proved on record and in absence of the stolen articles being produced before the Court, the Courts below only on the basis of the presumption ought not to have recorded the conviction against the petitioner. 22. In that view of the matter, I am inclined to allow this revision petition and set-aside the judgment of conviction and order of sentence passed by the Trial Court which was confirmed by the Appellate Court. Page 9 of 10 23. Accordingly, the petitioner is acquitted for the offence under Section 411 IPC and the judgment of conviction dated 08.05.2009 passed by the learned S.D.J.M., Balangir in G.R. Case No.709(A) of 2005/T.R. Case No.994 of 2006 and confirmed by the Appellate Court vide judgment dated 25.11.2009 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balangir in Criminal Appeal No.18/8 of 2009 are set aside.
Decision
24. The Criminal Revision is accordingly allowed and disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2024 14:32:46 Page 10 of 10